' On 30-1-1982, a consent decree in a suit for specifics performance was made in favour of Muhammad Riaz Qammar as against Umar Din and Asghar All on the basis of statements of Qamar Ali, plaintiff, learned counsel for both the defendants and Asghar Ali recorded on 18-1-1982.
This decree was passed by learned Civil Judge,First Class, Gujranwala. The Court recorded its order in Urdu which reads:- [URDU TEXT] Civil Judge Ist Class Ferozewala
2. Plaintiff sued to enforce a contract of sale which had been entered into between him and Umar Din. Asghar All was not a party to the original contract.As he claimed a title to the suit property on the basis of purchase from Umar Din, he was also impleaded as party-defendant being bound by the earlier contract of sale. Suit land, subject-matter of suit for specific performance was half share of total land measuring 120 Kanals 12 Marlas. Sale price fixed was Rs.24,500. As stated above, decree in the suit for specific performance was passed in favour of Muhammad Riaz Qamar on the statements recorded by the Court on 18-1-1982. Umar Din, the first defendant in the suit, for specific peformance, after the decree dated 30-1-1982, preferred an application, on 2-3-1983, under section 12 of the Code of Civil Procedure in the Court of learned Civil Judge, Ferozewala stating that the decree passed against him was based on fraud, in that, Ghulam Rasool son of Kaim Din was never appointed as Attorney by him. Allegations in support of collusion between Ghulam Rasool and the other party to the suit were also made in the abovestated petition. Prayer for annulment of the decree, therefore, was made by him. This stance of Umar Din was opposed by the plaintiff and Asghar Ali. When the matter was sub judice before the Court, the parties to the suit are alleged to have settled their differences and come to a compromise. The Court was requested to record the terms of compromise, and pass an appropriate order in relation to the suit for specific performance earlier decreed, under Order XXXIII, rule 3 of the Code of Civil Procedure. No formal order is stated to have been passed by the Court on this petition. Next date of hearing fixed is 13-9- 1984. This date has been given by learned counsel for the petitioner in para. 7 of the writ petition. On 29-5-1983, Asghar Ali, subsequent vendee of the suit property, impleaded as defendant No.2 in the original suit for specific peformance, made a petition in Court stating that since the decree-holder ( petitioner) had defaulted in making payment of balance amount, the suit merited dismissal.
Copy of the said petition is marked Annexure 'H'. Learned Civil Judge on 15-6-1983 made the following order:- [URDU TEXT] ' Against the amendment made in the decree vide order, dated 15-6-1983, Muhammad Raiz filed a petition for review. Review did not succeed and the petition was dismissed on 7-7-1983. Petitioner approached learned District Judge, Sheikhupura, in revisional jursidiction against order, dated 7-7- 1983. Learned Additional District Judge did not feel inclined to interfere in revision and proceeded to dismiss the same on 24-3-1984. Learned Civil Judge, then, on 24-5-1984, observing that the plaintiff has defaulted in compliance with the terms of the decree as amended on 15-6-1983 and failed to deposit the sale price within time fixed by the Court, proceeded to dismiss the suit. Petitioner, instead of availing the formal remedy of appeal/revision, has come to this Court under its constitutional jurisdiction with prayer that orders, dated 15-6-1983, 7-7-1983, 24-3-1984 and 24-5- 1985 be set aside and declared to have been passed without jurisdiction and without lawful authority.
3. I have heard learned counsel for the petitioner and examined the record. Learned counsel contended that a consent decree on the statement of the parties was passed in favour of the plaintiff by the trial Court. Thereafter, a petition under section 12(2) of the Code of Civil Procedure was moved by Umar Din. During the pendency of these proceedings initiated under section 12(2), parties again arrived at a compromise. The terms of the agreement were reduced to writing. A petition for recording of the compromise in terms already reduced to writing was moved in the trial Court. Instead of deciding the suit/ controversy on the terms arrived at between the parties, the learned trial Judge postponed its hearing to 13-9-1984. Meanwhile, on an application moved on behalf of Asghar Ali, the original decree passed in the suit for specific performance was amended by the trial Court on 15-6-1983 without any notice or affording an opportunity of hearing to the plaintiff/decree-holder. In place of the earlier consent decree which contained no direction for deposit of the sale price and execution of sale-deed etc. in the altered circumstances, the plaintiff was directed to deposit the balance amount till 10-7-1983 failing which his suit was considered to have been dismissed automatically. The amendment in decree in the absence of and without notice to the decree-holder could not be made. Learned counsel further contended that such a conditional decree could not have been passed in a suit seeking specific performance of an agreement to sell and even if such a pere-emptory condition was made a part of the terms of the decree, it neither debarred the tiral Court from extending the time fixed for deposit in the decree nor the plaintiff decree-holder from seeking enlargement of time. Learned counsel relied on section 148, C.P.C. to support his contention which reads:- "148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion from time to time, enlarge such period even though the period originally fixed or granted may have expired."
4. The Code of Civil Procedure does not prescribe any particular form for drawing up of a decree in a suit for specific performance as it does in the case of some other decrees nor does the Code indicate the contents of such a decree as it does in the case of a decree in a pre-emption suit as provided for in Order XX, rule 14 of the Code of Civil Procedure. All that any decree of specific performance can properly contain is adjudication to the effect that the plaintiff was entitled to the enforcement of the contract which the defendant had entered into with him, for the sale of a certain property for a certain specific sum. The power of the Court to fix a period for the deposit of the sale consideration was not provided for specifically either in the Code of Civil Procedure or in the Specific Relief Act. Indeed, section 35 of the Specific Relief Act indicates a contrary intention.
This provision of law indicates that in the event of a party to the decree being in default another party could either file a suit for the rescission of the contract on which specific performance had been granted or he could even apply to that Court which could then rescind the decree. It is n doubt true that in this country usually when Courts pass a decree for specific performance,they fix a time during which the plaintiff is enjoined to pay the sale consideration and thereby get a proper sale in respect of a property. But this is more for purposes of convenience rather than in compliance with any provision of law. In Abdul Shaker Sahib v. Abdul Rahman Sahib AIR 1923 Mad.
284 a Division Bench of the Madras High Court held that the proper form for a decree for specific performance was not to make the relief granted to the plaintiff conditional upon his paying the sum within a specified time. The practice which prevailed in the Chancery Division in England was the proper practice to follow in respect of decrees for specific performance of contract of sale. In this case, learned Judges held that the Court had the power to extend the time. The view taken by the Madras High Court in this case was that the decree which is made in a suit for specific performance is in the first instance, a decree in the nature of preliminary decree, and that the decree only attains a final form after the plaintiff has made the deposit of the sale consideration and has thereafter obtained actual sale of the property. It was observed by the Hon'ble Chief Justice Schwabe that till the date of the final completion of the whole matter the Court had seizin over the case and that as such the Court could extend the time which it may have fixed earlier for the payment of the sale consideration. Wallace J. put the matter slightly differently. He expressed the view that a decree for specific performance of a contract was nothing more than a contract which had been affirmed by a Court by the decree and the decree did not lose the essential character of a contract. The time which the decree fixed for payment of the sale consideration was like the time fixed for doing an act in any contract and unless it could be held that time was of the essence of the contract it could be extended and that the contract could not fail because the time fixed for the performance of the contract had elapsed. Wallace J.in his judgment while considering this matter observed: "Regarding the decree from this point of view, as a contract, it is clear in this case, as in most other of the same kind, that time is not of the essence of the contract, and that until the contract is rescinded by formal order or decree, such time for performance,not being an essential part of the contract, may be varied by the Court which has declared what the essential terms of the contract are" section 35 of the Specific Relief Act clearly indicates that a decree in a suit for specific performance unless it is rescinded for non-performance of any other condition laid thereunder,does not automatically cease to exist.The Court may,in terms of section 35 clause (c), in the case, in which the decree has been made, and not complied with rescind the contract either so far as regards the party in default or altogether as the justice of the case may require. This view of the Madras High Court was subsequently followed in AIR 1926 Mad. 114, AIR 1933 Cal. 58, A 1 R 1946 Nag.
29. In the case of Asraf All alias Asrafuddin Mondal and another V. Balva Hasda and others PLD 1967 Dacca 557, Dacca High Court observed:- It is thus clear that the decree in an action for specific performance of contract, no matter whatever may be the form in which it may be drawn up, is, in the eyes of law, a preliminary decree, and as such, even where a default clause is attached thereto, is not dead but pending,though in a comatose condition. Necessarily the Court retains control over the action and has, therefore, jurisdiction to enlarge time regardless of the said default clause."
' Position in a pre-emption suit however is slightly different. As already pointed out, in a pre- emption suit decree has to be made in accordance with the provisions of Order XX, rule 14, C.P.C. which enjoins on the Court to fix a date of payment. In view of the rule of law laid down in the cases referred to above, the trial Court unless the contract of sale was rescinded under section 35 of the Specific Relief Act, was competent to enlarge the time for deposit of the sale price. In the case under consideration, the decree was amended and a peremptory direction was incorporated therein to make deposit of the balance of sale price before a certain specified date. Amended decree did not contain any such direction that in case sale price was not paid within time, the sale agreement would stand rescinded. Parties had arrived at another settlement, and for its enforcement, an application under Order XXIII, rule 3 of the Code of Civil Procedure was moved before the Court. Photo copy of the terms of agreement' arrived at has been appended with the writ petition. The Court, before it could reject the claim of the plaintiff by non-suiting him was bound under the law to dispose of the petition one way or the other made under Order XXII, of the Code of Civil Procedure. Learned counsel has referred to the terms of the compromise whereby, according to him, the parties had adjusted their whole controversy.In this background it was strenuously contended that the Court was not justified to dismiss the suit of the plaintiff merely for non-deposit of the sale price in time. Assuming the contention of the learned counsel to be correct that such petition was moved for recording compromise in terms contained in the document available on page 32 of the file of this Court, the trial Court was duty bound in law to decide the matter one way or the other before it could order dismissal of the suit for non-deposit of the balance sale price. Learned counsel for the petitioner is on a very firm ground in raising these points but then there is a formidable hurdle in his way in invoking the constitutional jurisdiction, without making resort to normal remedies provided under law, to seek redress against an order dismissing the suit. Consent decree dated 30-1-1982 did not contain any direction conditional or otherwise for depositing the purchase price.It did not contain any direction with regard to the execution and completion of the sale-deed and its registration, etc. Upon a subsequent application, the deficiency was made good and the decree was brought in proper form. It is true that the Court has dismissed his suit on 24-5-1984 for not depositing the decretal amount, in accordance with the terms of the decree as amended on 15-6-1983. The correctness or otherwise of order dated 24-5-1984 can well be brought under challenge in appeal. Learned counsel states that decree-sheet has not been prepared though the Court was bound to prepare one when dismissing the suit. Appeal lies when a formal decree is in existence. Unless decree-sheet is prepared by the trial Court, appeal cannot be preferred. If it be so, the petitioner is not without a remedy. He can take appropriate steps to get a decre formally prepared. In constitutional jurisdiction, the petitioner canno be allowed to circumvent the normal' law of appeal, revision etc. TM case is an instance where resort to extraordinary constitutional juris diction of the High Court has been taken in a matter for which there are adequate alternative remedies available under the ordinary law of the land. Under our constitution, High Court can entertain a petition in such jurisdiction only if it was satisfied that no other adequate remedy is provided under law. Any attempt, therefore, to seek resolution of a controversy arising in a constitutional jurisdiction of the High Court by passing the remedies provided under the ordinary law was bound to create confusion and frustrate the purpose of constitutional provision. This effort must always be discouraged and avoided. The petitioner, therefore, has still a remedy open to him under normal law to challenge the dismissal order wherein he will be at liberty to take all possible objections which go to favour him. First appeal is a matter of right with him. The petitioner, therefore, without exhausting and availing of the normal remedies provided under law connot be allowed to break the chain and straightaway come to the High Court in constitutional jurisdiction. This case provides no exceptional characteristics to depart from the normal rule stated above. ln the light of what has been stated in the foregoing paragraph, I do not see any merit in the petition. It fails and is dismissed in limine.